On January 2nd, 2013 Homeland Security Secretary Janet Napolitano announced the posting of the long awaited final rule establishing a process that allows certain inadmissible individuals to become residents of the United States should they qualify for a waiver. The big change is the rule will allow applicants to apply for the waiver without leaving the United States, thus, significantly reducing the length of time immigrant families are separated.

The law is designed to avoid extreme hardship to US citizens who may have relatives whom entered the United States without inspection or “illegally.”

The prior processing of the waiver applications required the applicant to leave the United States and wait outside the US, possibly for a significant amount of time, and with no guarantee they would be allowed to return.

Under the new process, immediate relatives must still depart the United States for consular processing but they can apply for the provisional waiver before they depart for their interview abroad. The new process will reduce the amount of time U.S. citizen are separated from their qualifying immediate relatives.

In order to obtain the waiver, the applicant must be an immediate relative of a U.S. citizen, such as a spouse, parent or child under 21 years of age. They must be inadmissible only on account of unlawful presence, in other words the waiver will have no effect on certain criminal convictions or other inadmissibility grounds. Finally, the successful applicant must demonstrate the denial of the waiver would result in extreme hardship to his or her U.S. citizen relative. To determine whether you meet these requirements it is imperative you speak with an immigration attorney before applying.

USCIS will publish a new form, Form I-601A, Application for a Provisional Unlawful Presence Waiver, for use when applying. It should also be noted that hardship waivers are extremely difficult to obtain and should not be attempted by a novice. It is crucial that anyone wishing to apply discusses their potential claim with an attorney before filing and utilizes an attorney should the decision be made to apply.

Filing of these applications will begin on March 4th, 2013 and as with any complicated application it will take time and hard work to prepare all of the evidence and forms. Interested parties may wish to reach out to their immigration attorney before this date, so the application can be prepared and submitted as soon as possible. USCIS plans on releasing more information on this exciting change to immigration laws in the upcoming weeks.

For More Information

Contact the Law Offices of Nicklaus Misiti, PLLC at 212 537 4407 or via their website at www.misitiglobal.com for a case evaluation and to begin the process of preparing your application. Nicklaus Misiti is an immigration attorney headquartered in New York, NY who handles hardship waivers throughout the United States.

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